Universal Jurisdiction and International Justice, will Genocide fugitives face a day in court?

In the fall of September 1998, William Schabas, a law professor and international justice expert, took time off his teaching job at the University of Quebec in Montreal. He travelled to Rwanda and worked with the Faculty of Law at the University of Rwanda in Butare. A month later, Schabas stopped his criminal law class and tuned on the radio. Together with his students, he listened to a live broadcast of the first judgment by the International Criminal Tribunal for Rwanda (ICTR) that sits in Arusha, Tanzania. The ICTR convicted Jean Paul Akayesu for genocide and crimes against humanity for his role in the April-July 1994 Genocide against the Tutsi in Rwanda. At this time, Akayezu was serving as the Mayor of the then Taba district in central Rwanda. He was sentenced to life imprisonment. According to Schabas, it was the reaction of the students that gave him a clear understanding of what the ICTR meant to Rwandans. “By and large, Rwandans were thrilled with the decision.” Schabas noted during a conference in Toronto commemorating the 15 anniversary of the Genocide . “It was clear to me from my 140 students and from talking to people in Butare the days that followed, that this was a very profound validation for the people of Rwanda by an independent international tribunal of the general facts of the genocide.” The Tribunal, established in November 1994 by the Security Council resolution pursuant to Chapter VII of the United Nations Chapter has since continued to have complications with the people and government of Rwanda. But according to Schabas, no matter how many complications have existed, the fact that the ICTR has continued to confirm the reality of the Genocide is its main contribution. “That service is enormous,” Schabas said. “The judgement of Akayezu and the others that have followed are just as important to the Rwandans as the Nuremberg Judgments is to the Genocide that took place under the Nazis.” During the visit, Schabas said that they saw massacres taking place and made the conclusion that there was a threat in the country. The team documented the threat in a report which the commission says was ignored. The cause of the Genocide has been attributed to various reasons such as colonialism, poverty, ethnic standoffs and invasion of Rwanda by rebels. However, there are other countries that have faced similar situations but no genocide has taken place. This has left many scholars wondering why Rwanda stood out from other conflicts. According to Schabas, one of the factors that can help understand the presence or absence of the Genocide that has not been explored in detail is that perhaps people are less likely to commit Genocide if they feel they are going to get caught. “The massacres were taking place in a climate of impunity. People thought there were never going to get caught.” With the ICTR scheduled to close shop next year, and some of its targeted perpetrators still at large, there is now concern as to what will happen next. The UN Under-Secretary-General for Legal Affairs Patricia O’ Brien in a statement released after her visit to the Arusha court in April 2009 said that despite the scheduled closure, there is a plan in place. “Fugitives of the 1994 Rwanda genocide will not escape justice. They will be pursued by a residual mechanism to be adopted after the UN Court for Rwanda winds up this year.” The residual mechanism will delegate the management of cases issues that will not have been settled by the Tribunal. At least 13 key suspects of the genocide are yet to be arrested, including the alleged financier, Felician Kabuga. ICTR prosecutor Hassan Jallow reported to the UN Security Council late last year that intelligence reports showed that Kabuga could be hiding in Kenya. Mrs O’Brien said the draft residual mechanism had been submitted to ICTR for additional input before the UN Secretary General presents the final version to the Security Council. The draft could be adopted by the middle of this year. While there has been continued high level commitment to bring to book Rwandan genocidaires, the perpetrators have used the loop holes of international justice to stay at large or escape justice in the countries where they ran to. Genocide and crimes against humanity are considered to be crimes with universal jurisdiction and therefore cases can be heard in countries other than Rwanda depending on what their respective legislations permit. The offences may also provide for countries to extradite the suspects if caught. In Canada, the government opted to expel and not extradite Leon Mugesera because of a speech he gave in Kabaya district of Gisenyi prefecture on November 22, 1992 that was internationally reported as an incitement to genocide. Rwanda has continuously requested Canada to extradite Mugesera. However, Canadian law requires that if such a thing is to take place, there has to be an extradition treaty between the countries involved. According to Bosco Mutangana, the head of the Genocide Fugitives Tracking Unit (GFTU) , Rwanda still continues to push Canada to execute such a treaty. While legal experts have argued that an extradition treaty would be a little too late, given that the crime was committed in the past, Schabas thinks otherwise. He says that extradition treaties may be put in place even after the offences have taken place. “There is no issue of retroactivity,” he says. “The new treaty seeks to govern events in the future even if it relates to crimes committed before its coming into force.” Instead according to Schabas, Canadian authorities seem to fear that Mugesera will petition the United Nations Committee against torture in order to challenge the expulsion or extradition to Rwanda. States and judges have argued that extradition is unthinkable given what they characterise to be the condition of the Rwandan justice system. In the UK, London’s High Court freed four men in early April accused of involvement in the 1994 Genocide in Rwanda, overturning a ministerial extradition order because of fears they would not get a fair trial. British Interior Minister Jacqui Smith had ordered the return of the suspects to Rwanda for trial. All four were accused of killing, or conspiring with or aiding and abetting others, to kill members of the Tutsi ethnic group “with the intent to destroy in whole, or in part, that group”. But London’s High Court ruled defence witnesses may be afraid to give evidence in any Rwandan trial, the Press Association reported. The judges declared: “We conclude that if [the four] were extradited to face trial in the High Court of Rwanda, the appellants would suffer a real risk of a flagrant denial of justice by reason of their likely inability to adduce the evidence of supporting witnesses.” The judges also ruled that there was a real risk “of executive [government] interference with the judiciary” in Rwanda. Vincent Bajinya, a British national and doctor who had changed his name to Brown, Celestin Ugirashebuja, Emmanuel Nteziryayo and Charles Munyaneza had been in custody since 2006. The judges ordered that the four men would have to be set free. The ruling highlighted the loopholes in UK law on genocide, war crimes and crimes against humanity. The four men fell into what was described by the former UK’s Director of Public Prosecutions, Sir Ken MacDonald QC, as an “impunity gap”. They cannot be extradited, but at the same time they cannot be prosecuted in the UK because people suspected of genocide, war crimes and crimes against humanity can only be prosecuted in the UK if the acts were committed after 2001 when the International Criminal Court Act was enacted. Britain approved the relevant genocide legislation far too late and it was not made retroactive to 1994. So Rwandan genocide suspects can now go scot-free in Britain after committing one of the most monstrous crimes in recent history. “We say international justice is there to step in where national justice has failed but actually in practice that has not been the case in most of these situations,” Schabas pointed out. In February, Finland refused a request from Rwandan authorities for the extradition of a former Rwandan pastor because it feared he would not get a fair trial. According to Schabas, this is because the judges around the world are unfamiliar with the context. “There are a lot of judges mainly out of ignorance and perhaps nourished by racist stereotypes and misconceptions of Africa who do not really understand what is going on there and they are sitting judging deciding whether you can get a fair trial in a poor African country,” he said. “And again the Rwandans may not be perfect but we also have a number of wrongful convictions before our courts.” Right now the biggest obstacle to this process is coming from ICTR, Schabas pointed out. Initially, the ICTR had a handful of low level perpetrators who they indicted and thought they would bring them to trial. But the UN insisted that the ICTR must try the big names. With the ICTR scheduled to close in a year, the low level perpetrators are left in limbo because the ICTR says Rwanda is not safe and yet no other country wants to try the suspects. “If we do not fix that, these guys are going to be at large for many years and that’s a very unfortunate message,” Schaba said. “The message we want to put out there is that do not ever think about the genocide because you will be caught.” Mutangana says that if the different countries can not bring the suspects to book, they should extradite them. “Rwandans would like to have them back,” Mutangana says. “A lot of progress has been made in the justice system in the last fifteen years. We are certainly in a position to deliver a proper modern and acceptable form of justice in accordance with human rights standards.” Rwanda now has modern court rooms, educated and trained judges and according to Schabas, Rwandans are good enough to do the job. In compliance to human rights demands, Rwanda has since abolished the death penalty and is in the process of getting rid of solitary confinement as a sentence. collinhaba@gmail.com